53 F.

3d 329
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished
dispositions is disfavored except for establishing res judicata, estoppel, or the law
of the case and requires service of copies of cited unpublished dispositions of the
Fourth Circuit.

UNITED STATES of America, Plaintiff-Appellee,

v.
Benancio CEPEDA, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Ameer Ali SHAKOOR, Defendant-Appellant.
Nos. 94-5301, 94-5302.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 2, 1995.
Decided May 2, 1995.

Before POWELL, Associate Justice (Retired), United States Supreme

Court, sitting by designation, WILKINS, Circuit Judge, and BUTZNER,
Senior Circuit Judge.
OPINION
BUTZNER, Senior Circuit Judge:

Benancio Cepeda and Ameer Ali Shakoor were each convicted of conspiracy to
distribute cocaine and distribution of cocaine. Shakoor was also convicted for
carrying a firearm in conjunction with a drug trafficking crime. On appeal they
raise numerous issues, four of which merit discussion. They contend that the
trial judge deprived them of a fair trial through improper questioning and
comments. They also argue that the judge erred when he refused to advise the
jury that a government witness had been coached by a member of the
courtroom audience. Cepeda maintains that the court erred by unduly
restricting testimony about his background. Finally, they assert that during
sentencing the court erred in his determination of the amount of cocaine base.
We affirm the judgments of guilt based on the verdicts of a jury but remand for

resentencing.
2

* The appellants were charged, along with Marlo Evans and Conwell M.
Edlow, Jr., in a multicount indictment alleging various drug trafficking
offenses. The government prosecuted on the theory that Cepeda was the leader
of the drug conspiracy, Shakoor was his assistant, and Evans, Edlow and other
unindicted coconspirators were the distributors. Evans and Edlow pled guilty
and agreed to cooperate with the government in the prosecution of Cepeda and
Shakoor.

Evans testified that Cepeda provided him with crack cocaine on consignment.
When Cepeda was unavailable, Shakoor supplied the cocaine. Evans also
testified that Edlow approached him and purchased an ounce of crack. Edlow
later asked to purchase larger quantities and Evans introduced him to Cepeda
and Shakoor.

Edlow was contacted by Gregory Mack, an undercover agent who wanted to

purchase two ounces of cocaine. Edlow testified that he used a pager provided
by Cepeda, placed an order for the cocaine, and received a drug delivery for
Mack from Cepeda and Shakoor. Mack later purchased two more ounces from
Edlow using marked currency. Following this last transaction, Cepeda and
Shakoor were arrested. Agents seized marked currency from both Cepeda and
Shakoor.

The jury convicted both defendants of conspiracy. It convicted Shakoor on two

counts of distribution and on the gun charge. It convicted Cepeda on one count
of distribution and acquitted him on another count of distribution. The district
court sentenced Cepeda to life imprisonment. The court sentenced Shakoor to
352 months imprisonment.

II
6

During the course of the five-day jury trial, the judge frequently questioned the
witnesses. The most extensive interrogation involved Shakoor and covered 20
pages in the trial transcript. In particular, the appellants complain about the
following questions:

7
THE
COURT: Where did you go to work after you left the non-commissioned
officers' club, February 1st, 1992? You met Mr. Cepeda. Where did you go to work?
8SHAKOOR: During that time I was a full time student.

THE COURT: What school? SHAKOOR: Commonwealth College, sir.

9
THE COURT: What courses were you taking at Commonwealth College?
10
SHAKOOR: Studying industrial electronics.
11
12 COURT: What courses did you take? Name the five or six courses as a full
THE
time student that you took that year and tell me the grades?
SHAKOOR: Personal computer repair. Solid state electronics.
13
THE COURT: You took this in when, beginning when?
14
SHAKOOR: I started Commonwealth College in June 1991, sir.
15
THE COURT: So you were a full time student in June 1991?
16
SHAKOOR: That is correct.
17
THE COURT: Until when?
18
19
SHAKOOR:
Until May, 1993. I believe it was--no. Not May. Until the spring of
1993. At that time I became a part time student.
THE COURT: Until the spring of 1993?
20
SHAKOOR: That is correct.
21
THE COURT: Now, this Commonwealth College is located where?
22
23
SHAKOOR:
Their main campus in Virginia Beach was--I attended Hampton
campus in Hampton.
THE COURT: Hampton campus. You mean Tidewater Community College?
24
25
SHAKOOR:
No, sir. Commonwealth College. Located in Riverdale Plaza in
Hampton.
THE COURT: Riverdale Plaza?
26
SHAKOOR: Yes, sir.
27
28 COURT: What time would you go to school in say the spring of 1993. You say
THE
spring. Was that January, February, March, April?
SHAKOOR: That would be from I believe the spring term ended in April.
29

THE
30 COURT: Spring term ended in April 1993?
SHAKOOR: At that time I was taking day classes.
31
32 COURT: What were the day classes that you were taking? We are talking
THE
about in the spring, April 1993, the last time that you were a full time student. Now,
what classes were you taking?
33
SHAKOOR:
I believe that I had oral communications during that term. I believe that
I had marketing management.
34 COURT: Oral communications. How many courses were you taking in April
THE
1993? Don't you pay for any course that you take?
SHAKOOR: I was receiving financial aid. I am not sure exactly.
35
THE COURT: So you were getting a government grant; is that correct.
36
SHAKOOR: Yes, yes.
37
38 COURT: And did you pass everything and get As or Bs or Cs, or how did they
THE
grade?
SHAKOOR: I kept a passing grade.
39
40 COURT: Do you know what you got in oral communications? Just tell me.
THE
That's the last full time course you took?
SHAKOOR: I believe I received a B in oral communications.
41
THE COURT: B. How many hours was it?
42
SHAKOOR: It was three. I think it was a three credit hour course.
43
THE COURT: So that's speech, isn't it?
44
SHAKOOR: Oral communications as relates to business, sir.
45
THE COURT: Oral communications, you mean it doesn't teach you how to speak?
46
SHAKOOR: Oh, that it does, sir, yes.
47
THE COURT: So it is oral communications. Does it mean what it says?
48
SHAKOOR: Yes, sir.
49

THE
50 COURT: So you have been taught how to talk to people, isn't that correct?
SHAKOOR: You could say that, sir.
51
52 COURT: You have had a full course in doing nothing but how to talk to people
THE
and persuade people, is that correct?
SHAKOOR: Yes.
53
54

Later the judge inquired about Shakoor's work history.

55 COURT: [Floyd] Featherstone, [owner of Sound Unlimited], employed you

THE
until when?
SHAKOOR: Approximately to the middle of June, sir.
56
THE COURT: Until the middle of June.
57
SHAKOOR: Yes, sir.
58
THE COURT: Then where did you go to work?
59
60
SHAKOOR:
Basically around that time. I didn't work the rest of June. I went home
during June.
THE COURT: You went home?
61
SHAKOOR: Yes, sir. My sister graduated in June and I went home.
62
63 COURT: Oh, now you went home. You didn't work the month of June. Now
THE
let's start in July. Where did you work in July 1993?
64
SHAKOOR:
When I returned in July, that's basically when I began looking for new
options and new employment. I only worked for Floyd once every two weeks during
July.
THE COURT: So you were working for Floyd in July?
65
66
SHAKOOR:
At approximately maybe one, like I said, once every two weeks,
whenever he needed me, if he had two jobs.
67 COURT: In July 1993, how much money did you get from Floyd
THE
Featherstone? In July 1993. Not any other time. In July.
SHAKOOR: I would estimate, sir, between-68

69 COURT: I don't want you to estimate. I want you to tell me. You ought to
THE
know. You worked for him. He must have paid you something. Did he pay you by
the hour?
70 SMITH: That's not a question now. Now you are--the Judge is incompetent to
MR.
testify in this proceeding and you shouldn't make a statement to the jury.
71 COURT: Gentlemen of the jury, he is absolutely right. I shouldn't have gone
THE
that far. It is wrong of me to do that. Disregard it. My problem is in July 1993, what
were your arrangements with Mr. Featherstone?
72

Cepeda was also questioned by the judge, though less extensively. The
appellants allege that the judge's questioning conveyed to the jury his opinion
that they were guilty.

73

Federal Rule of Evidence 614(b) specifically authorizes the court to interrogate

witnesses. Of course, while interrogating a witness the judge must remember
his responsibility to strive "for that atmosphere of perfect impartiality which is
so much to be desired in a judicial proceeding." Glasser v. United States, 315
U.S. 60, 82 (1942). When an attorney believes that the judge has strayed too far
in questioning a witness, he must object at that time or at the next opportunity
when the jury is absent. Fed.R.Evid. 614(c). This requirement is "designed to
relieve counsel of the embarrassment attendant upon objecting to questions by
the judge in the presence of the jury, while at the same time assuring that
objections are made in apt time to afford the opportunity to take possible
corrective measures." Fed.R.Evid. 614(c) advisory committee's note. The only
objection was during the questioning about Shakoor's employment. In
response, the judge corrected himself and gave the jury an appropriate
instruction to disregard his interrogation.

74

No objections were made to the remaining questions, and this precludes our
review of the issue on appeal. Stillman v. Norfolk & Western Ry. Co., 811 F.2d
834, 839 (4th Cir.1987). Even when appellate review is forfeited through
failure to object at trial, we nonetheless will examine the record for the type of
extreme prejudice which would deny a defendant his Sixth Amendment right to
a fair and impartial trial. See Stillman, 811 F.2d at 839.

75

It would certainly have been preferable for the prosecution to have asked the
questions posed by the judge. After considering the record as a whole, we find
the evidence insufficient to establish that the judge denied the defendants a fair
and impartial trial, as distinguished from a perfect trial, or that he usurped the
function of the prosecutor. See United States v. Parodi, 703 F.2d 768, 776 (4th

Cir.1983). There was no violation of the appellants' Sixth Amendment right to a

fair trial.
III
76

During the defendants' cross-examination of Evans, a United States Marshal

informed the judge that a member of the audience was coaching Evans in his
testimony. Outside of the presence of the jury, the district court questioned the
man and determined that he was Dale Evans, a brother of the witness. The court
allowed the defense to call Dale Evans and two others to the witness stand to
testify about the gestures he had made. The court found that Dale Evans had
made a gesture by holding his hands in the air but concluded that the meaning
of the gesture could not be determined. The judge also admonished the
audience not to signal to anyone testifying. A motion for a mistrial was made
by the defense and was denied. The defense then requested that the jury be told
about the gestures made to Evans by his brother, but the judge refused.

77

At trial, Shakoor's attorney conceded that, "[t]here [was] no evidence, as I

know, to explain exactly what was meant by [the gesture]." Given the
ambiguous nature of the occurrence and the overwhelming evidence against
Cepeda and Shakoor, we conclude that the district court did not commit
reversible error by refusing to inform the jury of the gesture. Cf. United States
v. Greenwood, 796 F.2d 49, 54-55 (4th Cir.1986) (holding that the trial judge
did not commit reversible error by excluding evidence of an ambiguous
"thumbs up" gesture which allegedly showed bias).

IV
78

When Cepeda took the stand to testify on his own behalf, the trial judge limited
his counsel to three questions concerning background evidence. Cepeda
responded to queries about his education, his military service and his security
clearance. The court refused to allow Cepeda to answer further questions about
his security clearance and his family because his counsel had exceeded the
three-question limit. Cepeda argues that the court erred by restricting testimony
about his background.

79

Federal Rule of Evidence 611(a) grants district courts the authority to exercise
reasonable control over the presentation of evidence in order to control the pace
of a trial. "A district court's evidentiary rulings are entitled to substantial
deference and will not be reversed absent a clear abuse of discretion." United
States v. Moore, 27 F.3d 969, 974 (4th Cir.1994). In the criminal context, this
standard is met only when the district court acts arbitrarily or irrationally.

United States v. Ham, 998 F.2d 1247, 1252 (4th Cir.1993).

80

The trial court did not act arbitrarily or irrationally by limiting defense counsel
to three questions concerning Cepeda's background. The evidence in question
was collateral, rather than directly related to the crimes charged. The record
discloses that the judge did not restrict, in any way, Cepeda's ability to testify
about matters directly relevant to the charges. There was no abuse of discretion
in the limitation on background evidence.

V
81

At the sentencing hearing for Cepeda and Shakoor, police officer Larry
Minkoff testified that Cepeda brought 20 kilograms of powder cocaine into
Virginia while Shakoor brought in 16 kilograms. Using information supplied by
Evans he concluded that Cepeda and Shakoor converted 77.7% of their cocaine
powder into cocaine base. He testified that Cepeda should be held accountable
for 15.555 kilograms of cocaine base and 4.444 kilograms of cocaine powder
and that Shakoor was responsible for 12.444 kilograms of cocaine base and
3.555 kilograms of cocaine powder.

82

On cross-examination, Minkoff acknowledged that Evans did not have first

hand knowledge of the information from which the 77.7% conversion factor
was derived. Rather, Evans' information came from statements made by Eric
Roberts, Shakoor's predecessor in the drug conspiracy. Evans then, in turn,
reported this information to Minkoff. At trial Roberts had denied making the
alleged statements. Because Roberts specifically disavowed these statements at
trial, the judge refused to credit the statements underlying the conversion factor.

83

In determining the amount of cocaine base for sentencing purposes, the court
explained that it could not hold Cepeda and Shakoor responsible for "anything
less than in excess of 12 kilograms of crack." Accordingly, the court found that
Cepeda and Shakoor were each responsible for at least 5 kilograms of cocaine
base but not more than 15 kilograms, giving each appellant a base of 40 points
under the U.S. Sentencing Guidelines. The court confirmed that this
determination was based on the government's calculation that Shakoor had
converted 12.444 kilograms of powder into base cocaine.

84

The only evidence supporting the finding of 12.444 kilograms of base cocaine
was the double hearsay testimony which originated with Roberts. This evidence
was specifically discredited by the judge and cannot be the basis for
determining the quantity of drugs. The quantity of drugs involved must be

proven by a preponderance of the evidence. United States v. Gilliam, 987 F.2d

1009, 1013 (4th Cir.1993). Because the judge found that the evidence
supporting the 77.7% conversion factor was not credible and no other formula
was suggested, the calculation of 12.444 kilograms of cocaine base was clearly
erroneous. United States v. Goff, 907 F.2d 1441, 1444 (4th Cir.1990). At oral
argument, the government commendably acknowledged that the factual
findings were insufficient. The sentences are therefore vacated. We remand for
determination of the correct quantity for which Cepeda and Shakoor should be
held accountable and for resentencing.
85

We find no cause for reversal in the defendants' other assignments of error.

86

AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR

RESENTENCING